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Author: Zach Wolfe

If you’ve read my morning routine you know that one piece of it is listening to sports talk radio to find out for the final time if Lebron James is better than Michael Jordan. Another perennial drive-time debate is whether Bill Belichik has won so many games with the New England Patriots because he has Tom Brady as his quarterback, or if Brady has won so much because he has Belichik.

Wherever you come down in this debate, you have to admit the Patriots have had an amazing run in the Brady-Belichik era. Thirteen AFC Championship appearances. Eight Super Bowl appearances. Five Super Bowl wins. So far.

This is infuriating for fans of other teams because the NFL is supposedly built for “parity.” In contrast to college football, it rewards winners by giving them worse draft picks. Perhaps this is why, sadly, the Patriots have replaced my Dallas Cowboys as the NFL’s most hated team.

Haters will claim it’s the cheating. But some part of the credit for the Patriots’ astounding run should go to the well-known philosophy posted in their practice facility: Do Your Job.

This is a great mantra because in three little words it conveys two distinct messages, one of exhortation, the other of relaxation. “Do Your Job” says first, take care of your responsibilities. Your teammates are counting on you. But second it tells you not to worry too much. You don’t have to do anything spectacular, just do your job. Trust that if your teammates do their jobs too, the team will succeed.

As I wait to watch the Patriots play on the day before Martin Luther King Day, this reminds me of a scene from the 2014 historical drama Selma, directed by Ava DuVernay and starring David Oyelowo as Martin Luther King, Jr.

Selma tells the story of Dr. King leading the protests that culminated in the famous march(es) across Edmund Pettus Bridge, and ultimately, the Voting Rights Act of 1965. If you haven’t seen the movie, I highly recommend checking it out on Netflix.[1]

The scene that sticks in my mind takes place about 18 minutes into the movie, in the modest kitchen of the King home in Atlanta. Mrs. King is folding laundry at the kitchen table. The phone rings.

Coretta: Hello? [We hear a man speaking in ominous tones over the receiver, she hangs up as Martin walks in.]

Martin: Same thing? [She looks at him knowingly then turns away.]

Coretta: When are y’all heading out?

Martin: We, uh, head back to Selma at 5 am. Turned out to be an ideal staging ground. There’s a . . . a full couple of weeks planned, quite a bit to be done.

Coretta: [drinks from a glass of water] I see. [Martin takes the trash bag out of the kitchen trash can.] That highway is nice now, get you there in a couple of hours. Good people in those parts, though. [She hands him a new garbage bag.][2]

Martin: Well, I’m worried about the ones who ain’t so good. [He puts a new bag in the trash can]. This local sheriff, Jim Clark,[3] is supposed to be bad business. Won’t go down without a fight, they say. And since we don’t fight . . . Well, good a place to die as any, I guess.

Coretta: I wish you wouldn’t talk like that.

Martin: It just takes the edge off.

Coretta: You and your friends can joke about that. I don’t joke about that.

Martin: You’re right. I’m sorry.

Coretta: I’ll uh, put these things away in your bag now, I didn’t realize you were leaving so early [she walks out carrying some folded clothes].

[Martin turns off kitchen light, hesitates.]

This is a great, economical scene. It conveys a lot of information without a lot of action or dialog. You know the Kings are receiving harassing phone calls. You sense tension in their marriage. You get the exposition about what’s happening with the sheriff in Selma. And, perhaps most important, you see that Dr. King is a real flesh and blood person who has to balance his family life with the very real possibility that his activism could get him killed.

But there’s one part of this scene that really resonated with me. Did you spot it? Remember, this is Martin Luther King, who we see in the opening scene preparing to accept the Nobel Peace Prize. Martin Luther King, the hero who led the Civil Rights movement. I mean, today the dude has his own national holiday. Yet in this scene we see him taking out the trash?

Why did the director or screenplay writer include this detail? The Kings could have simply stood in the kitchen, or sat at the kitchen table, talking.

Maybe it was just to give the actors something to do so the dialog would sound more natural. But I suspect there was more to it. When we see Dr. King emptying the trash can, it’s a reminder. Even a person who is doing great things still has to deal with the mundane necessities of daily life.

Of course, when the people doing the great things are rich, they pay other people to do the tedious things. The wealthy can’t be bothered with even the simplest of tasks, like folding their own umbrellas.

But still, even Very Important People have to do a lot of the same things ordinary people do. They put their pants on one leg at a time just like the rest of us. Or to vary a common saying, their trash stinks too.

And seeing Martin Luther King take out the trash was a small but important lesson for white-collar “professionals.” It was especially necessary for me because I work in the profession with the whitest of collars: the law. There is a tendency for us lawyers—especially lawyers in the more “elite” firms—to think we’re above everyone else. We have advanced degrees. We have licenses. We don’t take out the trash; we have people who come through the office after 5:30 to do that.

And when your hourly rate is $500 or higher, you start to think your time is more valuable than other people’s. Why should you spend an hour doing yardwork when you could be billing that time?

I’m not saying lawyers–or other busy professionals–shouldn’t pay someone else to mow the grass. I’m more concerned with the mindset. Do you get frustrated with the time you have to spend doing “ordinary” things when you’re trying to accomplish something important? I know I do. And all I’m trying to do is build a law practice. It’s not like I’m leading a movement to overcome 100 years of state-sponsored terror and voter suppression.

But maybe we shouldn’t look at household chores as a hindrance. Why should we expect to be trusted with great things when we can’t be trusted with the little things? Selma reminds us that taking care of minor tasks we don’t really want to do is perhaps the simplest form of morality.

So do your job. Take out the trash. Or whatever the equivalent responsibility is for you.

And trust that if you do your job, and other people do theirs, great things can happen.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Like most lawyers he’s still at the office when the housekeepers empty the trash.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] I recommend the movie with one significant caveat. As you may recall, there was some controversy over the film’s historical accuracy, particularly its portrayal of President Lyndon Johnson as a reluctant ally who King had to pressure into supporting the Voting Rights Act. Former Johnson aide Joe Califano blasted this portrayal as inaccurate. Director Ava DuVernay responded that she was telling a story, not making a documentary. This raises thorny questions: How much historical inaccuracy we should accept as artistic license? Do factual inaccuracies lessen the quality of a historical drama? Are minorities held to a double standard when they use artistic license? Interesting issues that I will save for another day.

[2] Apparently the clear plastic trash bag in the scene was an anachronism; such bags were not used in 1965. Also, you can see the blender on the counter is plugged into an outlet that has a green LED light. But let’s not quibble.

[3] Sheriff Clark was an ardent segregationist known for recruiting a horse-mounted posse of KKK members, wearing military style clothing, and carrying a cattle prod that he infamously used on black protestors. In his later life, Clark sold mobile homes, got accused of embezzlement, and even served time for conspiring to smuggle marijuana from Colombia. He was unrepentant to the end. In a 2006 interview, Clark said “I’d do the same thing today if I had to do it all over again.” See Jim Clark, Sheriff Who Enforced Segregation, Dies at 84.

In Book III of his Metamorphoses, the ancient Greek poet Ovid tells the story of Narcissus, the child of a naiad, Liriope, and the river-god Cephisus. Narcissus was “most beautiful” but had a “pride so fierce no boy, no girl, could touch him.”

One day a rejected youth prayed for Narcissus to get his comeuppance, and Nemesis, the Goddess of Vengeance, “judged the plea was righteous.” So she cursed Narcissus to fall in love with his own reflection in a pool. Narcissus endlessly stared at the pool, even pressing his lips to the water to kiss his own image. But “the vision is only shadow, only reflection, lacking any substance.”

Eventually, Narcissus figured out what was going on: “The truth at last. He is myself! I feel it, I know my image now. I burn with love of my own self; I start the fire I suffer.” But it was too late. “As the white frost is gone in morning sunshine, Narcissus, in the hidden fire of passion, wanes slowly . . . fading away.”[1]

This of course is the origin of the Klingon expression “revenge is a dish best served cold.” See Star Trek II: The Wrath of Khan (Paramount 1982). It’s also where we get the term narcissism, which Webster’s defines as “excessive interest in or admiration of oneself and one’s physical appearance.”

Narcissistic personality disorder

The Greek myth of Narcissus is also the origin of a modern medical term: Narcissistic personality disorder. As with any psychological condition, it is largely a matter of degree, and there is no single dispositive factor.

But while there is no single defining characteristic of narcissistic personality disorder, the Mayo Clinic publishes this list of symptoms. I’ve grouped them into four categories:

What a narcissist thinks about himself

“Inflated sense of their own importance”

“Have an exaggerated sense of self-importance”

“Have a sense of entitlement”

“Believe they are superior and can only associate with equally special people”

“Fragile self-esteem that’s vulnerable to the slightest criticism”

What a narcissist desires from others

“Require constant, excessive admiration”

“Expect to be recognized as superior even without achievements that warrant it”

“Expect special favors and unquestioning compliance with their expectations”

“Insist on having the best of everything – for instance, the best car or office”

How a narcissist feels about others

“Lack of empathy for others”

“An inability or unwillingness to recognize the needs and feelings of others”

“Envious of others and believe others envy them”

How a narcissist treats others

“Troubled relationships”

“Exaggerate achievements and talents”

“Monopolize conversations and belittle or look down on people they perceive as inferior”

“Expect special favors and unquestioning compliance with their expectations”

“Take advantage of others to get what they want”

“Behave in an arrogant or haughty manner, coming across as conceited, boastful and pretentious”

One more thing. Narcissists tend to be of a certain gender. But I won’t open that can of worms here.

I just want to distill the essence of narcissism and figure out if being a narcissist makes one a better lawyer. Because I’m a lawyer, and I like distilling essences.

I think the essential features of a narcissist are the same flaws the mythical Narcissus had: excessive self-love and excessive pride. In the workplace, these essential features of narcissism manifest as (1) an excessively high opinion of one’s abilities in relation to others and (2) excessive concern for getting credit from others.

Now that we’ve got a more precise working definition of narcissism, we can figure out if narcissists make better lawyers.

Are narcissists better lawyers?

The short answer is no. I don’t think narcissists make better lawyers.

But all else being equal, I’d bet that narcissists make more successful lawyers.

So first let’s separate narcissism from some positive traits it often accompanies: ambition, drive, boldness, to name a few. Those things can make you a more effective lawyer, but you can have them without being a narcissist.

So the question becomes: is a narcissist likely to be a better lawyer all else being equal? Assume two lawyers have the same experience, talents, and intelligence, but only one of them is a narcissist. Would you pick the narcissist to be your lawyer?

When we put it this way, I say no, for three reasons.

First, the narcissist’s inflated sense of self-importance is not helpful to the kind of work lawyers typically do. Despite what you see in movies and TV shows, good lawyering is not all bluster and bluffing. It takes discipline, organization, and diligence. The lawyer who thinks he’s hot shit—pardon my French—is less likely to be patient and methodical.

Second, narcissists just rub people the wrong way. A pompous or arrogant lawyer is usually a less persuasive lawyer.

Third, at the risk of mixing ancient Greek metaphors, lack of empathy is the narcissist’s Achilles’ heel. This is not to say that narcissists don’t get what makes people tick. I would bet the narcissist is better than most at understanding how to manipulate people. But the narcissist doesn’t really understand—or care—how other people feel. And that’s a big disadvantage. Excellent lawyers have a keen ability to put themselves in the other guy’s shoes.

But if I’m right, why does it seem like so many successful lawyers are narcissists?

Adam Grant may have some answers. He’s the top-rated professor at the Wharton School of Business and has written extensively on personality types in business leadership. In his article Tapping into the power of humble narcissism, Grant says “narcissists are more likely to rise up the ranks of the corporate elite and get elected to political office.” He chalks this up to the fact that people are drawn to the confidence that narcissists exude.

So should we strive to be more narcissistic to get ahead? Not necessarily. Grant touts a kinder, gentler version of narcissism: “Humble narcissists bring the best of both worlds: they have bold visions, but they’re also willing to acknowledge their weaknesses and learn from their mistakes.”

Makes sense to me. But to paraphrase another ancient text, what does it profit a man to be a narcissist, if he loses his own soul? On this question I think it’s useful to consult another ancient Greek, one who is less entertaining than Ovid, but perhaps more insightful.

Is narcissism a character virtue?

In his bestselling Nichomachean Ethics, Aristotle doesn’t address narcissism per se, but he does discuss vanity.

Vanity comes up in the course of Aristotle examining the major character virtues. Aristotle sees each virtue as a mean between two opposite vices. So, for example, with respect to how one responds to danger, the two extremes are cowardice and foolhardiness. Courage is the golden mean between them.

When it comes to claiming external rewards for oneself, vanity is the obvious vice:

Vain people . . . are foolish and do not know themselves; and they make this obvious. For they undertake commonly honored exploits, but are not worthy of them, and then they are found out. They adorn themselves with clothes and ostentatious style and that sort of thing; and since they both wish for good fortune and wish it to be evident, they talk about it, thinking it will bring them honor.

It’s easy to understand why vanity is a vice. But what’s the opposite of vanity? Aristotle uses a word usually translated as “pusillanimity,” which means timid or cowardly, but that’s really not the opposite of vanity, is it?

No, we don’t have a simple modern English word for the opposite of vanity. And that tells us something: we don’t think of the absence of vanity as a character flaw.

Aristotle, on the other hand, thought failing to claim the honor you deserve is a real character defect:

For the pusillanimous person is worthy of goods, but deprives himself of the goods he is worthy of, and would seem to have something bad in him because he does not think he is worthy of the goods. Indeed he would seem not to know himself; for if he did, he would aim at the things he is worthy of, since they are goods. For all that, such people seem hesitant rather than foolish.

But this belief of theirs actually seems to make them worse. For each sort of person seeks what [he thinks] he is worth; and these people hold back from fine actions and practices, and equally from external goods, because they think they are unworthy of them.

While we don’t tend to fault people for a lack of vanity, we can at least grasp Aristotle’s point. We see a version of this idea in contemporary self-help advice for professionals, especially women. See, for example, the bestseller Knowing Your Value: Women, Money, and Getting What You’re Worth by Mika Brzezinski.

So, while we don’t like vanity, we understand why hesitating to claim the “external goods” you are worthy of is a problem.

But don’t most people–men and women–have the opposite problem? You see this sentiment in the clichéd lament that Millennials are too “entitled.” And it’s not just Generation Y. It feels like it’s human nature to claim more than you deserve, not less. So you’d think vanity would be more common than pusillanimity, and worse.

But surprisingly, Aristotle says precisely the opposite. He claims that pusillanimity arises more often, and is worse.

To understand why, consider what lies between vanity and pusillanimity. Remember, Aristotle defines each character virtue as a mean between two vices. In this case, the Greek word for the mean between vanity and pusillanimity is megalopsychia.

This word is often translated as “magnanimity,” which Webster’s defines as generous or high-minded. A more literal translation is “greatness of soul” (megalo = great, psychia = soul). This better captures what Aristotle means, but “great-souled-ness” is kind of awkward, so I’ll stick with “magnanimity.”

“The magnanimous person,” Aristotle says, “seems to be the one who thinks himself worthy of great things and is really worthy of them.” So far, this sounds ok to our modern ears, though maybe a little elitist.

But then Aristotle goes a step further. The thing the magnanimous person is most concerned about claiming is honor, “the greatest of the external goods.” “Hence the magnanimous person has the right concern with honors and dishonors.”[2]

Today the prevailing attitude about claiming honor is more egalitarian. Yes, we want people who have traditionally been oppressed to claim more external rewards. Know your worth! But at the same time, we bristle at the notion of “great” people claiming great honors. Who do they think they are?

I have to admit my bias tends to run in this direction too. But that’s all the more reason to ponder Aristotle’s view that magnanimity is a virtue and pusillanimity a greater vice than vanity. If you’re hard-wired not to make a big a deal about your own accomplishments, maybe you’re not “living your best life.” You may need to compensate by watching how successful narcissists do it.

Learn how to claim credit. Just don’t stare too long at your own reflection.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. His fragile self-esteem is vulnerable to the slightest criticism.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

I don’t know if Justice Terry Jennings is one of my Fivers, but apparently he agrees with a lot of Five Minute Law’s past propaganda regarding textualist application of the Texas Citizens’ Participation Act (TCPA).

The TCPA was intended as an “anti-SLAPP” statute, i.e. to discourage a litigation bully from filing a lawsuit against a “little guy” in retaliation for the little guy exercising his free speech rights.

When the TCPA applies, it gives the defendant the valuable procedural right to file a motion to dismiss that puts the burden on the plaintiff to support its claims with evidence, before the plaintiff has had any opportunity to take discovery.

The TCPA applies when the plaintiff’s claim “is based on, relates to, or is in response to” the defendant’s exercise of the “right of free speech” or the “right of association.”

The statute defines the “exercise of the right of free speech” broadly as a “communication made in connection with a matter of public concern,” with “matter of public concern” also defined broadly to include an issue related to “a good, product, or service in the marketplace.”[1]

The statute defines the “exercise of the right of association” broadly as “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.”[2]

You can see from this language how the TCPA could lead to good results. A neighborhood group forms to stop a nearby refinery from releasing toxic gases. Global Oil Conglomerate instructs its BigLaw minions to sue the group for defamation based on posts on its Facebook page. Rather than buckling under the weight of enormous legal fees, the plucky neighborhood group hires a small town lawyer to file a TCPA motion to dismiss. The judge grants the motion, orders Global to pay the group’s legal fees, and Matthew McConaughey wins an Oscar for his portrayal of the lawyer.

Everyone’s happy. Alright, alright, alright.

But you can also see how the broad language of the TCPA could apply to lawsuits the legislature never had in mind. Imagine a porn star sues the President for defamation. The judge dismisses the case and orders the porn star to pay the President’s legal fees. It could happen.

That was at least a defamation case, which is clearly the type of case the legislature had in mind when it passed the TCPA. It seems much less likely that the legislature intended to fundamentally change the way departing employee cases are litigated.

Departing employee litigation is near and dear to my heart because it’s the kind of lawsuit I often handle. This is the type of case where an employee or group of employees leaves a company and either forms a competing company or goes to work for a competitor. Usually the first company asserts claims like breach of a non-compete and misappropriation of trade secrets.

These cases usually don’t raise any true “free speech” or “free association” issues. The “right of association” is not a defense to enforcement of a non-compete (provided the non-compete is reasonable and enforceable), and there is no First Amendment right to communicate your employer’s trade secrets to a competitor.

So what should the judge do in a departing employee case where the defendant files a TCPA motion to dismiss? On the one hand, the TCPA applies when a claim is based on “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.” Construed literally, that language applies to the allegation that an employee joined a competitor and disclosed his former company’s trade secrets.

On the other hand, the purpose of the statute is to protect constitutional rights, and a claim of trade secret misappropriation really doesn’t implicate such rights. Should the judge apply the statute literally, even though the result is not what the legislature intended?

Enter textualism.

We are all textualists now

Textualism is somewhat controversial. In part this is because in practice textualism is popular with one particular political party and ideology. But everyone who works in the law—at least everyone who is serious—is a textualist to some extent. No one seriously argues that the text of a statute—or a Constitution—should be ignored.

The fact that we are all textualists to some extent is apparent in the absence of any real “-ism” that is the opposite of “textualism.” No group identifies itself as the “Non-Textualists” or the “Anti-Textualists.” (The same point applies to “originalism,” but I won’t open that can of worms here.)

No, we all agree that when you interpret a text, the starting point is, duh, the text. You might find some radical academic types who question that premise, but no one who works in the law would seriously say “the text of the statute is totally irrelevant to me.”

On the other side of the spectrum, even the most committed textualist will concede that sometimes a judge should look to extrinsic sources to interpret the text. For example, if a statute is ambiguous, even after applying canons of statutory construction, then just about everyone would agree you can look to the purpose of the statute, or some other extrinsic source, to decide which of two reasonable constructions of the statute makes more sense.

Similarly, even the strict textualist camp would concede the principle—recognized in many court decisions—that extrinsic sources should be consulted when the literal application of a statute would produce a truly absurd result.

So if we all agree on these basic principles, what’s all the controversy about?

Here’s where it gets hard: when literal application of a statute would produce a result that, while not rising to the level of absurd, is contrary to the intended purpose of the statute. That’s where I think the dividing line is.

In this scenario, the true textualist bites the bullet and says “no, the judge should not look outside the text of the statute just because the result doesn’t make sense to the judge.”[3]

This is where textualism loses me, and I’m not the only one. When the literal application of a statute would produce a result at odds with the intended purpose of a statute, I tend to side with the non-textualists who say “no, in this case we’re not going to apply the literal meaning of the statute.” As I’ve written before, following the literal text in this situation “thwarts the intent of the legislature in the name of deference to the legislature.” See A SLAPP in the Face to Texas Trade Secrets Lawsuits – Part 2.

And I’ll give you a good example: application of the TCPA to departing employee litigation.

Application of the TCPA to departing employee litigation

Step one was the Texas Supreme Court holding in Coleman that the plain meaning of the TCPA’s broad definitions must be applied.[4] The Texas Supreme Court reaffirmed this plain meaning approach in Adams.[5]

Step two was the Austin Court of Appeals holding in Elite Auto Body that the TCPA applies to a claim that a departing employee disclosed trade secrets to his new employer. The court reasoned that a literal reading of the statute’s definition of “communication” would clearly include alleged communications among the departing employees and their new enterprise through which they allegedly shared or used the confidential information at issue.[6]

Elite Auto Body acknowledged that it would be reasonable to limit the statute to its stated purpose of protecting constitutional rights, but it found that argument foreclosed by Coleman’s plain meaning approach.[7]

One more note about Elite Auto Body: the court did not address the argument that the claims fell under the TCPA’s “commercial speech” exemption because it found that issue had been waived.[8] More about this exemption later.

Application of the TCPA to departing employee cases has since expanded. In Craig v. Tejas Promotions, the Austin Court of Appeals held that the TCPA applies to a claim of conspiracy to misappropriate trade secrets. The court reasoned that the claim rested on allegations that included “communications” between the alleged co-conspirators.[9]

In Morgan v. Clements Fluids, the Tyler Court of Appeals held that the TCPA applies to a claim based on departing employees’ communications among themselves and within the competitors, through which they share or utilize the alleged trade secrets.[10]

And that brings us to Gaskamp.

Gaskamp applies the TCPA to departing employee claims

In Gaskamp v. WSP, the WSP companies sued a group of former employees for allegedly starting a competing company while employed by WSP and then taking WSP’s trade secrets to the new company. WSP alleged that the former employees violated the Texas Uniform Trade Secrets Act (TUTSA) by using and disclosing WSP’s trade secrets, including proprietary design software used to create architectural designs.[11]

WSP argued that the TCPA did not apply. First, WSP said its lawsuit was based on theft and use of its trade secrets, not the employee’s right to freely associate or right of free speech as required by the TCPA. Second, WSP argued that the TCPA’s commercial-speech exemption applied.

The Court of Appeals rejected the first argument. The court cited WSP’s allegations that the employees used and disclosed WSP’s trade secrets to establish a competing engineering firm called Infinity MEP. The court reasoned that the alleged “transfer and disclosure” of WSP’s trade secrets to Infinity MEP “required a communication.” In addition, the allegation of inducing customers to reduce their business with WSP would “necessarily involve communications as defined by the TCPA.” And the allegation that the employees conspired among themselves to misappropriate trade secrets and interfere with WSP’s business also necessarily involved a communication.[12]

“All these communications were made by individuals who ‘join[ed] together to collectively express, promote, pursue, or defend common interests,” the court said, “the common interest being the business of Infinity MEP, operating as WSP’s competitor.” The alleged interference with customers involved communication “made in connection with a matter of public concern.” Thus, the claims related to the employees’ exercise of their rights of association and free speech, respectively, as broadly defined by the TCPA.[13]

This part of Gaskamp is important because the same reasoning would apply in almost any suit against departing employees that involves misappropriation of trade secrets. A plaintiff might be able to avoid this part of Gaskamp by alleging use of the trade secrets without any allegation of disclosure or communication of the trade secrets, but even in that case the employee could argue that the allegation necessarily relates to communications with the customers. The argument that the TCPA does not apply to trade secret misappropriation seems unlikely to succeed.

But the second argument in Gaskamp may be more promising for plaintiffs in departing employee cases. WSP argued that the statute’s commercial-speech exemption applied. That exemption states that the TCPA does not apply to a suit against “a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.”

The Court of Appeals agreed with this argument (although for narrow procedural reasons).[14] Thus, the commercial-speech exemption applied, and the trial court was correct to deny the employees’ motion to dismiss under the TCPA as to two of the WSP plaintiffs.

This was no consolation for a third WSP plaintiff that failed to file a response to the TCPA motion (believing it had already been non-suited from the case). As to that entity, the Court of Appeals held that the motion to dismiss should have been granted.[15]

But at least one justice thought this result was “manifestly unjust.”

Justice Jennings questions the “textualist” approach to the TCPA

Justice Jennings wrote a concurring opinion. He joined in the majority opinion but wrote separately “to warn of the inherent dangers to Texas Jurisprudence posed by a rigid adherence to the ideological doctrine of so-called ‘textualism’ in construing our Constitution and statutes.”[16]

By applying the literal text of the TCPA’s definitions without considering the purpose of the statute, Justice Jennings said, the Texas Supreme Court has interpreted the TCPA “much more broadly than the Texas Legislature ever intended.” Applying the Texas Supreme Court’s literal interpretation of the statutes definitions necessarily led to a “manifestly unjust and absurd result,” but he and his colleagues were required to apply the definitions as instructed by the higher court.[17]

Still, Justice Jennings wanted to make his own view clear:

I respectfully disagree with the Texas Supreme Court’s unnecessarily broad interpretation and application of the TCPA to matters that exceed its expressly stated purpose to protect only the constitutional rights of free speech, to petition, and of association. A reasonable interpretation of the TCPA, when read in its entirety, reveals that it was never intended to apply to any of the claims at issue in this case. It should go without saying that communications allegedly made in furtherance of a conspiracy to commit theft of trade secrets and breaches of fiduciary duties do not implicate “citizen participation.”[18]

Justice Jennings went on cite the statute’s stated purpose “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government,” language indicating “the legislature intended to protect only constitutionally-protected freedoms that rise to such a level that they can be considered participation in government.”[19]

He acknowledged that the statute’s “awkward” definitions, standing alone, appear to include communications that are not constitutionally protected but said “we cannot read these definitions in isolation.” While the plain meaning is the best expression of legislative intent, that is not the case when “a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.”[20]

In Justice Jennings’ view, the broad definitions in the TCPA should be limited by the statute’s expressly-stated purpose of safeguarding constitutional rights. “Here, unfortunately, the Texas Supreme Court, in construing the TCPA by focusing like a laser on the literalness of the bare words of its pertinent definitions, has effectively strangled the real meaning and purpose of the statute.”[21]

But again, Justice Jennings was careful to concede that the Court of Appeals is bound by the decisions of the Texas Supreme Court. That’s why he wrote a concurring opinion rather than a dissent.

So what is to be done? Justice Jennings urged two potential solutions: (1) the legislature should revise the TCPA’s definitions to include qualifying language repeating the stated purpose of the TCPA to protect constitutional rights, and (2) the Texas Supreme Court should “revisit and correct is overly-broad interpretation of the TCPA.”[22]

Those sound like reasonable suggestions. But convincing the Texas Supreme Court to change its approach sounds like an uphill battle. And the legislature? Who knows. I’m not sure there’s any powerful interest group that has enough of a stake in reigning in the TCPA. Maybe business groups who want to make it easier to protect trade secrets and stop employees from competing?

But in the meantime, as we’ve already seen, the Gaskamp opinion suggest a simpler way to limit the application of the TCPA to departing employee litigation.

A textualist solution to the TCPA problem?

The solution I have in mind is right out of Shakespeare. The Merchant of Venice teaches us that when the bad guy goes textualist, the way to beat him is to go hyper-textualist. When Shylock insists on enforcing the plain meaning of a “pound of flesh,” Portia responds that his contract means exactly a pound—no more, no less. And only a pound of “flesh”—nothing else.

The commercial-speech exemption applied in Gaskamp could offer plaintiffs in departing employee cases a similar way out of the TCPA. The exemption applies when the defendant’s “statement or conduct” arises out of the sale or lease of goods or services.

What if we apply that definition literally? One could argue that a departing employee’s use or disclosure of the employer’s trade secrets always arises from the sale or lease of goods or services. What the TCPA giveth as “communication,” it taketh away as “commercial speech.”

Maybe that could work. But strangely enough, the Texas Supreme Court has not construed the commercial speech exception literally, instead adopting a four-part test based on the “context” of the exemption. See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018).

What’s up with that?

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. So far no videos of him dancing on a rooftop in college have surfaced.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[3] The realists—another camp!—might question how many “textualists” actually do this in practice when applying the literal text would yield a result they don’t like. But in theory this is what the true textualist is supposed to do.

The short answer is yes. A non-solicitation agreement is a form of non-compete.

But why does this issue come up? And what difference does it make?

To understand why, let’s back up a bit. It is common for an employment agreement to contain both a “non-solicitation” section and a “non-compete” section. A non-solicitation clause places restrictions on the employee soliciting company customers after leaving the company. A non-compete clause is broader: it places restrictions on the employee working for a competitor after leaving the company.

Every state limits the enforceability of non-competes in some way. In Texas, where I practice, we have a statute declaring that every contract in restraint of trade or commerce is unlawful.[1] But the statute has a large exception for a “covenant not to compete.”

So what about a covenant not to “solicit”? How does that fit into the statutory scheme?

There are really only two options. A contractual covenant not to solicit is either a “restraint of trade or commerce,” which is illegal, or a form of “covenant not to compete,” which is enforceable if it meets the requirements of the non-compete statute.

It’s pretty easy to see why a non-solicitation agreement is a restraint of trade or commerce. Think about it. Imagine if Apple and Samsung signed a contract saying that Apple will not solicit smartphone customers in Asia, and Samsung will not solicit smartphone customers in North America. The Justice Department would be all over that.

It should be no different if the non-solicitation agreement is part of an employment contract.[2]

You can see where this is headed. It shouldn’t help the company to argue that the non-solicitation agreement is not a “non-compete.” If that’s true, it’s an illegal restraint of trade. I’ve made this point before. See When is a Non-Compete Not a Non-Compete in Texas?

But even aside from this dilemma for the employer, there are two reasons why a non-solicitation agreement should be treated as a “non-compete” that is subject to the restrictions in the non-compete statute.

First, common sense. Let’s say I draft a contract that says the employee shall not “cheat” for a period of one year after leaving the employer, with “cheat” defined as “to work for a company that provides similar goods or services as those provided by Employer.”

Hey, it doesn’t use the word “compete,” so it’s not a “covenant not to compete” subject to the statute, is it?

Of course it is. The law isn’t going to let a company get around the requirements of the non-compete statute merely by using some label other than “compete.” The question is whether the function of the clause is to restrict competition. An agreement not to solicit the employer’s customers obviously restricts competition with the employer and therefore should be treated as a “covenant not to compete.”

Whether an agreement is a “non-compete” shouldn’t depend on the label

The second reason that a non-solicitation agreement is a “covenant not to compete” is that the Texas Supreme Court has said so. This is more important than the first reason.

In Marsh USA Inc. v. Cook, 354 S.W.3d 764, 768 (Tex. 2011), the Texas Supreme Court clarified Texas law on enforceability of non-competes. The agreement in Marsh prohibited the employee from soliciting a certain type of business from people who were clients or prospective clients of his employer within two years of his termination.

Under the heading “Enforceability of the Covenant Not to Compete,” the Texas Supreme Court began its analysis by stating:

Covenants that place limits on former employees’ professional mobility or restrict their solicitation of the former employers’ customers and employees are restraints of trade and are governed by the Act [meaning the Texas Covenants Not to Compete Act].

In support, the court cited two state court cases and two federal court cases treating non-solicitation agreements as non-competes.

So that should settle it. A non-solicitation covenant is a kind of “covenant not to compete.”

But what difference does it make?

It matters because a covenant not to compete must meet the two requirements of the statute. First, it must be “ancillary to an otherwise enforceable agreement.” Second, it must be reasonable in time, scope, and geographic area. You can watch a brilliant five-minute video on these requirements here.

The geographic area requirement is often a sticking point. Despite the unambiguous requirement in the statute, it is not unusual to find a non-solicitation clause, or even a broader non-competition clause, that contains no geographic limitation. When that happens, the employee can argue that absence of a geographic limitation renders the clause unenforceable as written.

In Impact Floors, the trial court granted a temporary injunction enforcing the non-solicitation and non-disclosure provisions of an employment agreement. Id. at *1-2. On appeal, the employee argued the trial court was wrong to enter the injunction because the employment agreement contained no geographic limitation. Id. at *3.

That should have been a pretty easy issue for the Court of Appeals, right? As we’ve seen the Texas non-compete statute applies to a non-solicitation agreement, and the statute expressly requires a reasonable geographic limitation.

But the Court of Appeals rejected the employee’s argument on the ground that the injunction only enforced the non-solicitation and non-disclosure provisions of the agreement, not the non-compete provision. Id. at *3.

I’ll leave it to the appellate specialists to argue whether the Court of Appeals got this right on narrow procedural grounds.[3] But as discussed above, the Texas Supreme Court has specifically said the requirements of the non-compete statute apply to a non-solicitation agreement. So, to the extent that Impact Floors says otherwise, it is wrong.

But there is another way to get to the same result. Despite the plain language of the statute requiring reasonable limitations as to “geographical area,” some Texas courts have said that a limitation on the scope of a non-compete—such as limiting it to the employee’s clients—can be used in lieu of a geographic limitation.[4]

So if you’re the lawyer representing the employee, don’t get too excited if the non-solicitation clause has no geographic limitation. It might still be enforceable as written. And even if it’s unenforceable as written, the trial court judge could still grant a temporary injunction enforcing it to a more limited extent.

But don’t let the employer’s lawyer get away with arguing that a non-solicitation clause isn’t a non-compete. That’s just incorrect.

*These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[2]See, e.g., Rimkus Consulting Group, Inc. v. Cammarata, 255 F.R.D. 417, 438-39 (S.D. Tex. 2008) (stating that a “nonsolicitation covenant is also a restraint on trade and competition and must meet the criteria of section 15.50 of the Texas Business and Commerce Code to be enforceable”).

[3] The Court of Appeals reasoned that the employee complained on appeal only about the non-compete provision, but that the temporary injunction did not enforce the non-compete provision, so therefore the employee’s complaint presented nothing for appellate review. Id.

[4]See Gallagher Healthcare Ins. Servs. v. Vogelsang, 312 S.W.3d 640, 654-55 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“A number of courts have held that a non-compete covenant that is limited to the employee’s clients is a reasonable alternative to a geographical limit”); M-I LLC v. Stelly, 733 F.Supp.2d 759, 799-800 (S.D. Tex. 2010) (taking “holistic” approach and holding that absence of geographic restriction did not render non-compete unenforceable where time period was only six months, employee held upper management position, and employee had access to company’s trade secrets).

People have different communication styles

One thing I’ve learned after almost 20 years of marriage is that everybody has a different communication style. Let’s take the time my lovely wife was almost caught in the crossfire of a Houston highway gang shootout. I don’t remember the exact conversation, but it was probably something like this:

Me: Hi, honey, how was your day?

Her: Oh my goodness, it was crazy. You’ll never believe what happened.

Me: What happened?

Her: Well, you remember the kids had appointments at the orthodontist today, right?

Me: Right [I didn’t really remember]

Her: Their appointment was at 3:00, so we left around 2:00 and got on I-45, and then . . .

Time out. If you’re like me, you may already feel a little impatient. You just want to know what happened! You don’t want to be kept in suspense.

If this had happened to me, the conversation would be more like this:

Wife: How was your day today?

Me: It was good, but when I was driving to work I got stuck in a police chase. The guys the police were chasing pulled over and pointed their guns out their windows! I was right in the middle of it. It was scary, but luckily I was able to maneuver around the police cars and drive away unharmed.

See how I got right to the point and summarized what happened?

I used to wish my wife would do that too, so we could get to more important things, like watching Monday Night Football. But eventually I realized that’s just not her style. And now I actually enjoy the way she turns the day’s events into a story.

She’s a “storyteller.” I’m a “teacher.” She’s good at telling a story that keeps your attention. I’m good at explaining complicated facts or legal issues in a simplified way that teaches the audience the essential things they need to know. At least that’s what I wrote in my website profile.

But what’s the best style for the courtroom?

Trouble is, I’m a trial lawyer, not a teacher. Is my style right for the courtroom? It seems like most great trial lawyers are known as master storytellers. And good storytelling has tremendous psychological appeal. If you can frame the facts of your case as a compelling story of right and wrong, you may get the judge or jury on your side before the first witness even takes the stand.

Part of what makes storytelling effective is the suspense of not knowing what’s going to happen. I discovered a great example of this recently on YouTube. The video was G.E. Smith talking about playing in Bob Dylan’s band.

Those of you of a certain age will remember G.E. Smith. In the early 90s my college buddies and I religiously watched him fronting the Saturday Night Live band each week. (I mean, other than all the Saturday nights when we were dating extremely attractive coeds, of course.) We always got a kick out of seeing the different guitars G.E. would trot out. And if you’re really old, you may even remember him from those early Hall and Oates videos on MTV.

Anyway, in this video G.E. Smith tells the story of how he got to tour with Bob Dylan, one of his childhood idols. Before you read the rest of this, watch the video here.

Did you watch it? You saw that playing vintage guitars isn’t G.E.’s only talent. He also has a knack for storytelling. I think there are two key elements: he keeps you in suspense about what happened, and there’s a point at the end.

It wouldn’t be quite the same if G.E. had my style. If he just wanted to “teach the material,” he might say something like this:

I got the opportunity to tour with my idol Bob Dylan because at the New York studio audition, which I thought at the time was just an informal jam session, I knew one of his more obscure early songs called “Pretty Peggy-O.” Bob was impressed enough that he asked me to play guitar in his band. I toured with him for several years while I was still doing Saturday Night Live, and it was a great experience.

In my defense, this version gets right to the point and doesn’t waste words. But it’s also kind of dry. So do I need to change my style to be more engaging in the courtroom?

I think it depends. The opening statement in a jury trial is an obvious opportunity to tell a story. But there are many courtroom situations where storytelling is not a good idea.

For example, an oral argument in an appellate court is not the right venue for telling a story. Sure, you want to present key facts in a way that supports your legal argument, but you don’t want to rehash underlying facts or details of the trial. The judges have already read the briefs. They want you to focus like a laser on the difficult issues they have to decide.

Stories. Good for kids. Not always good for courtrooms.

Even in the trial court, storytelling isn’t always the best strategy. Let me give you an example based loosely on cases I’ve handled.

Let’s say I’m defending against a motion for a temporary injunction to enforce a non-compete. The plaintiff’s lawyer starts off the hearing by telling the story of what happened: Mr. Employee came to work for the company, the company gave him leads, confidential customer information, and training, Mr. Employee decided to leave, and then he jumped ship to a competitor, hoping his clients would follow.

That’s a pretty typical approach. Of course, the plaintiff’s lawyer is going to tell the story in a way that emphasizes the factual grounds for granting an injunction.

When it’s my turn to talk to the judge, one approach would be to tell the same story, but from my client’s perspective. “Your Honor, about nine years ago, my client went to work for ABC Company and started building his client base from nothing, using only his laptop and hard work . . .” You get the idea.

But I don’t do that. Instead I go right to my strongest points:

Your Honor, you’re not going to hear any evidence today that a single client has moved its business from ABC Company to my client’s new employer. So there is no imminent harm whatsoever, and any harm that might occur could be adequately compensated with damages.

This can be an instant momentum changer. If I’m lucky, the judge immediately picks up on my argument and says to the other lawyer, “wait a minute, is it true that at this point your client hasn’t lost any customers?” And so the balance shifts.

You see, the longer I’ve practiced in trial courts, the more I’ve learned the value of leading with your best stuff and getting right to the point.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.